Analysis: The multiple ironies of Nathi Mthethwa's application to the Cape High Court

David Bruce

David Bruce

David Bruce is a Johannesburg based independent researcher and writer working in the fields of policing, crime and criminal justice. From 1996 to 2011 he worked in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation (CSVR). He has a Masters in Management (Public and Development Management) from the School of Public and Development Management at the University of the Witwatersrand (2000). He has written extensively on policing issues including on questions of police reform, control of the use of force and police accountability and oversight.

South Africa

14 Nov 2012 01:42 (South Africa)

The action taken by the Minister of Police to halt an investigation into policing practices in Khayelitsha is a cynical political exercise that has nothing to do with an interest in the integrity of the Constitution. In effect, it amounts to an attempt to hinder efforts to improve the safety of the people of the township. By DAVID BRUCE.

Both Minister of Police Nathi Mthethwa and civil society groups have criticised the commission of inquiry appointed by Western Cape Premier Helen Zille in August to investigate policing in Khayelitsha. The establishment of the commission followed a number of complaints lodged with the provincial government in 2011 by organizations such as the Social Justice Coalition and Women’s Legal Centre alleging, among other things, that police inefficiency in Khayelitsha had led to an increase in both violent crime and vigilantism.

Despite overwhelming evidence to the contrary, Mthethwa has disputed the assertion that there is a problem of vigilantism in Khayelitsha. And, along with the civil society organizations, Mthethwa has also questioned the fact that the inquiry examines the functioning of the South African Police Service (SAPS) but not the Cape Town metro police.

Whether or not the metro police are incorporated into the terms of reference of the commission, we should not lose sight of the fact that this is essentially a side issue. Metro police in Cape Town number roughly 500, while the number of SAPS members in Cape Town is in the region of 7,000.

Zille has argued that complaints against the metro police are being investigated separately and their inclusion in the commission’s investigation would potentially have been unlawful. She could possibly also easily address these objections by persuading the city police to cooperate with the inquiry.

This might help to address the civil society concerns, but it is unlikely to deal with Mthethwa’s. In his capacity as Minister of Police, Mthethwa has instituted an action in the Cape High court to stop the work of the commission. In papers submitted to the court, Mthethwa has argued that the appointment of the commission by the Western Cape Premier is “unlawful and unconstitutional” and “exceeds the powers of policing vested in the province by the constitution”. This is notwithstanding the fact that Section 206(5) of the Constitution explicitly authorises provincial governments to appoint commissions of inquiry into policing matters. Not only is Mthethwa’s action a likely waste of taxpayers’ money but there are also several profound ironies to it.

Irony 1- Policing in KwaZulu-Natal

Mthethwa has intervened to obstruct an initiative that civil society groups hope will lead to improved policing in Khayelitsha. But the province that is crying out for intervention is Mthethwa's home province of KwaZulu-Natal. The crime situation in the province has deteriorated over the last year, with 10 police officers among those killed. In addition, the provincial police seem uninterested in a problem of widespread political killings.

KwaZulu-Natal is the epicentre of political assassinations in South Africa. Over the last two years, political assassinations in KZN have been taking place at a rate greater than the national rate of these killings over 1985-1989. According to an ANC internal report, there have been 38 killings of ANC members in the province since the beginning of 2011. If we add to this at least 13 IFP or NFP members who have been killed in this period, no less than 51 people affiliated with these parties have been killed in the province in less than two years. The provincial government is controlled by the ANC, but the even the killings of ANC members appear to attract little serious consideration from the provincial criminal justice system. For all the ANC members killed since the beginning of 2009, only one man has been convicted.

Senior KZN police officials are not only apparently negligent in attending to the problem of political killings. They are also embroiled in a fiasco involving a series of allegations and counter allegations of political favouritism and corruption. A prominent businessman, Thoshan Panday, was allegedly caught red-handed trying to bribe a senior officer with R2-million to change a docket that contained evidence of his involvement in multi-million rand SAPS procurement fraud. Panday is very well connected in policing circles, having paid for KZN Provincial Commissioner Betty Ngobeni's husband’s birthday party. It is therefore not surprising that she is alleged to have tried to interfere in the investigation against him.

Ngobeni was charged criminally by the Hawks and internally by the SAPS national office as a result of her connections to Panday and the alleged payments. It is evident she has powerful political connections because the National Prosecuting Authority suddenly reversed its decision to charge her on the basis that there was “insufficient evidence". The SAPS internal disciplinary charges were, very conveniently, also withdrawn. For the record, Ngobeni was also found to have been dishonest in her testimony in the Board of Inquiry into former National Commissioner Bheki Cele's fitness to hold office.

For his part, Panday has accused Major-General Dina Moodley, former KZN head of crime intelligence, of trying to blackmail him using recordings of his intercepted telephone conversations. Panday alleged the intercepts were used to try to get him to make accusations that SAPS provincial commissioner Ngobeni was on his payroll. This, he said, was part of an attempt to get her fired. Intercepts of Panday’s calls allegedly connect top ANC figures, businessmen and police officials to big state contracts.

Meanwhile the indictment against members of the Cato Manor Organised Crime Unit also pointed to the likelihood of a similar unit in Port Shepstone. Independent Police Investigation Directorate (IPID) statistics even suggest the problem of extra-judicial executions of arrested persons in the province may not be confined to these two units. Though not all alleged extrajudicial executions are recorded in the category, IPID statistics on killings by police “during escapes” may give an indication as to the scale of these killings. As a general rule killings “during escapes” may be assumed to involve the shooting by police of people who were already in custody. During the last seven years, 49% of deaths recorded by the IPID in this category (115 out of 237 deaths) have been in KwaZulu-Natal.

Irony 2 – Violent crime

It is not only KwaZulu-Natal where there is a desperate need of a commission of inquiry. The Institute for Security Studies has argued that there is a need for a commission of inquiry into policing nationally. One issue is the dire state of the policing of community protests. The tragic incident at Marikana is only one illustration of a crisis in public order policing. Though it predates Mthethwa’s appointment as minister, during his term of office the public order policing crisis has consolidated into something far more drastic.

Yet another problem is the reliability of crime statistics. As a result of evidence of systematic non-recording over many years, crime researchers now regard SAPS crime statistics in many crime categories as having little credibility. Despite the fact that there was evidence of widespread non-recording of crime by police nothing has been done to rectify this. (The basic reason for non-recording is pressure on the SAPS from above to reduce the recording of crime.)

Though there are pockets of excellence, the overall response to crime is woeful, with the latest crime statistics indicating a deteriorating crime situation in all provinces other than Gauteng. But the dubious reliability of crime statistics raises questions as to whether even the Gauteng statistics should be taken at face value.

What this means, in brief, is that there is no concrete evidence that the strategy of national government for addressing crime, which emphasises encouraging police to use more force, is a having any beneficial effect. Mthethwa, however, appears to be entirely ignorant of this fact, demonstrating that he is completely out of touch with the crime situation in South Africa.

Irony 3 – The killings of police

Mthethwa has argued that the commission of inquiry into policing in Khayelitsha is intended to serve a “nakedly political purpose” but it is Mthethwa himself who acts in this way. In the wake of the killing by police of Andries Tatane on 13 April 2011, the police came under sustained and severe criticism. Allegations of police brutality had already been discussed by the Portfolio Committee on Police in February 2011, and the growing number of documented incidents of police brutality fed into a climate of criticism of heavy-handed police behaviour. In an attempt to neutralise this criticism, Mthethwa and Cele initiated a public relations counter-offensive around the issue of police killings. As part of this counter-offensive Mthethwa organised a national summit on killings of police on 8 July 2011. The cynical nature of Mthethwa’s actions is illustrated by the absence of any commitment by Mthethwa to carrying forward the resolutions of the summit. Many of these resolutions required action on the part of the SAPS and a bit of progress has been made in addressing some of these. But on resolution that required action from Mthethwa there is barely any progress. In relation to a commitment to convene provincial summits in each of the provinces for instance, so far only one has been held: in KwaZulu-Natal.

An important resolution made at the summit was around the “need to look at partnerships around research and best practices on the issue of police killings”. For this purpose the Civilian Secretariat for Police, which reports directly to Mthethwa, was tasked with “facilitating an initial meeting with different research agencies and academics to explore this issue” with a commitment made to holding the meeting before the end of September 2011. In the 16 months since the summit absolutely nothing has been done by the minister or the Secretariat for Police to ensure that such a meeting takes place.Another police officer, Constable Vidhur Jadoo, was killed last Wednesday while approaching a car, believed to be occupied by a group of robbers, in the vicinity of the Midmar Dam near Howick in KwaZulu-Natal. Mthethwa has repeatedly exploited killings such as this in order to motivate for more aggressive use of force by police despite evidence that this exacerbates the problem.

Killings of police have declined by 13% between the 2010-2011 and 2011-2012 financial years. Killings of policy on duty, however, have increased during this period to 38 from 36. The reduction in killings of police is exclusively the result of a 25% drop in killings of police while off duty to 43 from 57. This reduction is unexplained, but it is reasonable to argue that it has nothing to do with anything that has been done by the minister, or the SAPS for that matter, to advance police safety. SAPS initiatives focus largely on promoting the safety of on-duty police whilst the minister cannot claim to have done anything to address the issue.

Irony 4 – Corruption and equality before the law

Mthethwa has argued in court papers not only that the appointment of the commission is unconstitutional but also that it is politically motivated. It is an act of gross hypocrisy, even by the standards of politicians, for Mthethwa to launch an action in the name of the Constitution. It is also completely absurd for Mthethwa to put himself forward as an opponent of political interference in policing matters. In the last five years, Mthethwa has actively undermined government’s ability to uphold key principles embodied in the Constitution. As Chief Whip of the ANC in parliament, Mthethwa was a principal agent of the demise of the Scorpions, and thereby of the principle of equality before the law in South Africa. As a result of the destruction of the Scorpions, all crime investigation capacity has been centralised under the office of a presidential appointee, the national commissioner of the SAPS. Centralisation of crime investigation powers has been a means of ensuring that those who are favoured are protected from the operation of the law.

The recent publication of excerpts from the “spy tapes” illustrates that former President Thabo Mbeki and former National Director of Public Prosecutions Bulelani Ngcuka, were apparently implicated in political interference in the criminal justice system. This included, among other things, an attempt to interfere in the timing of the lodging of charges against Jacob Zuma because they believed if charges were lodged prior to the December 2007 Polokwane conference it would enhance Zuma’s chances of securing the position of ANC president. In so doing, Mbeki and Ngcuka became unwitting agents of those, such as Mthethwa, who wished to ensure that Zuma was not prosecuted.

But this does not make Mthethwa and his allies any less guilty of the charge that they have profoundly compromised the capacity of our criminal justice institutions to uphold the principle of equality before the law, embodied in Section 9(1) of the Constitution. As a result of their work, the principle is no longer of any force. People who are favoured are protected from prosecution. It is only when they fall out of favour that they face the risk of prosecution, as has now happened to Julius Malema.

Even the South Africa Revenue Service, a supposed bastion of governmental excellence, has now instituted steps against Malema apparently with the purpose of abetting the ANC’s effort to neutralise him politically. It is unlikely to be a coincidence that SARS instituted its action against Malema in the same week in September that the National Prosecuting Authority lodged charges against Malema. The point here is of course not that Malema is necessarily innocent, but merely that he is only being prosecuted as a result of having fallen foul of the ANC.

The heightened susceptibility of our crime investigation mechanisms to political interference was also demonstrated last year in the case of Richard Mdluli, then-head of SAPS Crime Intelligence. Mthethwa was able to ensure the termination of the corruption investigation against Mdluli simply by an instruction to the SAPS national commissioner. An inquest has now found that Mdluli cannot be held responsible for the 1999 murder of Oupa Ramogibe on a “balance of probabilities”.

This does not mean that there are not still questions about whether or not Mdluli played a role in the murder. But even if he was entirely innocent, Mdluli’s appointment by means of an irregular procedure involving four Cabinet members while still suspected of murder clearly amounts to an abuse of power.

The preference given by Mthethwa to the appointment of Mdluli and the involvement of Cabinet members in the process highlights not only a chronic problem of political interference in the SAPS. If one of the key problems nationally is that of police corruption, is it appropriate for Mthethwa to retain the position of minister?

Not only is there the evidence that Mthethwa protected Mdluli against investigation for corruption. There is also the peculiar proximity of Mthethwa to Rustenburg Mayor Matthew Wolmarans when Wolmarans received the information that corruption whistleblower Moss Phakoe had been killed. Wolmarans has now been sentenced to life imprisonment with his driver for the Moss Phakoe murder. Mthethwa was reportedly with Wolmarans when Wolmarans received the information about Phakoe’s death.

Should it then merely be regarded as a coincidence that Mdluli was also the person who buried the initial investigation into Phakoe’s murder? Effectively, therefore, Mthethwa was not only with Phakoe’s killer when he received news of his death but also protected against investigation, the man who, it would appear, tried to prevent Wolmarans from being brought to justice.

It was also Mthethwa who pioneered the Nkandla security complex funding model with a crime intelligence “slush fund” being used to pay for an extensive security wall around his private residence. Minister Mthethwa, of course, was ignorant of the source of the funds. Yet again this demonstrates his incompetence and therefore his patent unsuitability for the ministerial portfolio.

It is difficult to avoid what appears to be the obvious conclusion. Mthethwa’s action in the Cape High Court is a cynical political exercise that has nothing to do with an interest in the integrity of the Constitution. In effect, it amounts to an attempt to hinder efforts to improve the safety of the people of Khayelitsha.

Viewed against his overall record as Minister of Police the court action also further reinforces the impression that while Mr Mthethwa remains Minister the deterioration of policing in South Africa is likely to continue. DM

David Bruce is a Johannesburg based independent researcher and writer working in the fields of policing, crime and criminal justice. From 1996 to 2011 he worked in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation (CSVR). He has a Masters in Management (Public and Development Management) from the School of Public and Development Management at the University of the Witwatersrand (2000). He has written extensively on policing issues including on questions of police reform, control of the use of force and police accountability and oversight.

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